458 F.Supp.3d 1065
E.D. Ark.2020Background
- Plaintiffs Little Rock Family Planning (LRFP) and Dr. Thomas Tvedten challenge an Arkansas Department of Health (ADH) April 27, 2020 directive requiring a negative COVID-19 NAAT test within 48 hours before elective surgeries, including surgical abortions.
- ADH issued COVID-19 emergency directives to preserve PPE and limit virus spread; April 27 relaxed an earlier April 3 blanket ban on elective surgeries but added testing and other precautions.
- Several abortion patients (four Jane Does) and LRFP staff declared that asymptomatic testing with 48-hour turnaround was often unavailable, causing delayed or denied surgical abortions and risking passage beyond Arkansas’s pre-viability limit.
- ADH replied that the directive is neutral (applies to all elective surgeries), relates to public health, some tests and facilities have provided timely results, and more testing capacity is coming online.
- The court applied the Jacobson framework (state emergency measures may infringe rights if they bear a real or substantial relation to the public health crisis and are not a plain, palpable invasion) and concluded plaintiffs failed to show a likelihood of success on the merits. TRO denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a TRO/preliminary injunction should issue | LRFP: testing requirement imposes an undue burden and effectively bans timely pre‑viability surgical abortions for some patients; irreparable harm exists | ADH: directive is a neutral, temporary public‑health measure; some abortions proceeded and testing capacity is increasing | Denied — plaintiffs failed to show likelihood of success on the merits required for TRO |
| Whether the April 27 directive lacks a “real or substantial relation” to COVID‑19 (Jacobson test) | LRFP: testing requirement is burdensome, relies on limited rapid tests with accuracy concerns, and improperly restricts abortion access | ADH: testing and other conditions plainly relate to limiting virus spread; court should not second‑guess public‑health policy | Held to relate to public health; court will not substitute its judgment for the state’s emergency policy |
| Whether the directive is “beyond all question, a plain, palpable invasion” of abortion rights | LRFP: the directive functionally prevents some women from obtaining pre‑viability surgical abortions | ADH: directive is temporary, neutral, and allows non‑elective abortions; not aimed at restricting abortion | Not a plain, palpable invasion; review is governed by Jacobson and plaintiffs did not meet that high showing |
| Whether plaintiffs demonstrated irreparable harm and balancing of equities favors injunction | LRFP: individual declarations show concrete delays, inability to obtain tests, and risk of passing gestational limits | ADH: some patients obtained timely results; directive expires soon and increases public‑health protections | Court acknowledged hardship and sympathy but found legal standard (likelihood of success) unmet; equities/public interest did not warrant TRO |
Key Cases Cited
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding reasonable public‑health restraints during epidemics; test for relation to public health and avoidance of "plain, palpable invasion" of rights)
- In re Abbott, 954 F.3d 772 (5th Cir. 2020) (applied Jacobson to state COVID‑19 measures affecting abortion access)
- Roe v. Wade, 410 U.S. 113 (1973) (constitutional right to pre‑viability abortion; relevant precedent though Jacobson framework governs emergency measures)
- Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) (standards for preliminary injunctions as an extraordinary remedy)
- Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109 (8th Cir. 1981) (test and factors for preliminary injunctions)
- Gelco Corp. v. Coniston Partners, 811 F.2d 414 (8th Cir. 1987) (preliminary injunction burden and analysis)
- Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006) (district court discretion on injunctions)